Social Media Continues to Impact Litigation

Social Media Continues to Impact Litigation

Social media continues to influence not just the news, but litigation as well. Courts recently have been forced to address the discovery and use of social media posts for impeachment purposes and in other substantive contexts.

Since the firm posted Heather Reznik’s article “Discovery of Social Media Sites Explained” in September 2015, all three United States district courts in Louisiana have considered the circumstances under which a party must reveal its “private” posts on social media accounts, including Facebook, Instagram and Twitter. The majority of these cases were personal injury lawsuits wherein the defendant propounded very broad interrogatories and requests for production that sought a plaintiff’s social media activity, both prior to and subsequent to the incident involved in the litigation. Without exception, every court ruled that most discovery requests regarding social media accounts were overly broad and unduly burdensome. However, the courts agreed that some of a party’s social media activities are discoverable regardless of whether the party classified the post as private or public.

In Farley v. Callais & Sons LLC, 14-2550 (E.D. La. 8/10/15), 2015 U.S. Dist. LEXIS 104533, the Eastern District of Louisiana court was called upon to determine if a very broad interrogatory requesting the opposing party’s Facebook activity and user ID and password was permissible under Louisiana law. The court observed that “even a casual reader would view these requests as intrusive, particularly given the fact that the combination requests for log-in and password information and an accompanying request for an authorization that Facebook turn over all of the sought-after information would essentially render moot any exercise of discretion by [the plaintiff] or his counsel in determining what, if any, information was actually discoverable.” Id. at 4.

The Court rejected the defendant’s suggestion that a new set of discovery principles and rules should apply to social media-based information as opposed to traditional discovery precedent. The Court, in prefacing its ruling, stated that “when it comes to one of the key indices of discoverability – relevance – is there a meaningful difference between typing a message into a cell phone or computer keyboard, as opposed to speaking it out loud to another person or writing it on paper? In the Court’s view, the answer to that question must be ‘no.’” Id. at 6. The court examined cases from California to Florida, and then enumerated six categories of information which it held discoverable from a Facebook account, from the date of accident to the present:

1) postings by the plaintiff that refer or relate to the accident in question;

2) postings that refer or relate to emotional distress that the plaintiff alleges suffering as a result of the accident and any treatment that the plaintiff received therefor;

3) postings or photographs that refer or relate to alternative potential emotional stressors or that are inconsistent with the mental injuries alleged by the plaintiff;

4) postings that refer or relate to physical injuries that the plaintiff alleges he sustained as a result of the accident and any treatment that he received therefor;

5) postings that refer or relate to other, unrelated physical injuries suffered or sustained by the plaintiff; and

6) postings and photographs that reflect physical capabilities that are inconsistent with the injuries that the plaintiff allegedly suffered as a result of the accident.

Id. at 11-12.

The Court then took the extraordinary step of directing that the plaintiff make all of his social media posts immediately available to his counsel. The plaintiff’s counsel then had to review the posts to determine whether they fit into one or more of the categories outlined above. Further, the court ordered the plaintiff to provide a declaration, signed under penalty of perjury, affirming that he provided to his attorney all SNS (social network site) information (or access to it) requested by the defendant. Finally, the plaintiff’s counsel had to ensure that the SNS information was preserved.

The same limitations placed on the plaintiff’s production of social media activity were also used in Moore v. Wayne Smith Trucking, 14-1919 (E.D. La. Oct. 21, 2015), 2015 U.S. Dist. LEXIS 143750. Moore involved an accident between a truck and an automobile resulting in the death of the automobile driver. The surviving wife brought the action on her behalf and that of her minor child. The plaintiff sought broad discovery regarding the defendant truck driver’s Facebook or any other social media accounts. The court found that the scope of the plaintiff’s discovery should be limited from the date of the accident and a four month period forward. The court ordered the defendant’s counsel to review the social media posts to determine whether they fit into one or more of the discoverable categories. Similarly, in Impson v. Dixie Elec. Mbrshp. Corp., 14-632 (M.D. La. 12/22/15), 2015 U.S. Dist. LEXIS 171388, the Middle District of Louisiana court followed the same reasoning as other districts in Louisiana in limiting any request for social media posts by time and subject matter.

In Ehrenberg v. State Farm Mut. Auto Ins. Co., 16-17269 (E.D. La. 8/18/17), 2017 WL 3582487, 2017 U.S. Dist. LEXIS 132036, at *5, the court limited the defendant’s discovery request of the plaintiff’s social media sites to the following categories:

1) posts or photos that refer to or relate to the accident.

2) posts or photos that relate to physical injuries that the plaintiff alleges she sustained as the result of the accident and any treatment she received therefore.

3) posts or photos that refer or related to other, unrelated physical injuries suffered or sustained by the plaintiff.

4) posts or photos reflecting physical activity by the plaintiff and/or which reflect a physical capability of the plaintiff.

5) posts or photos that refer or relate to emotion distress or mental anguish that the plaintiff alleges she sustained as the result of the accident and any treatment she received therefor.

6) posts or photos that refer or relate to any alternative potential emotional stressors experienced by the plaintiff.

7) posts or photos that refer or relate to any vacations taken by the plaintiff.

Id. at 9. Clearly, the court went to great lengths to enumerate all the categories of photos or posts that the court believed would be directly relevant to not only the accident, but also to the injuries allegedly sustained by the plaintiff.

Discovery of social media obviously is becoming an important tool in litigation and the courts are fashioning rules to address this contemporary issue. Social media post already have become important evidence in a number of contexts. The recent case law instructs that any party requesting social media posts or photographs should narrow the inquiry to time and subject matter relevant to the accident and alleged damages. As new and imaginative social media platforms are developed, it will be a challenge for lawyers to remain current as to the appropriate discovery and use of social media.